U.S. Constitution, First Amendment, &c.

Discussion in 'The Lounge' started by Steerpike, Jun 20, 2013.

  1. Justin Rocket 2

    Justin Rocket 2 Contributor Contributor

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    You keep asserting that, but you've not yet proved that Balance of Powers doesn't work.

    Yes, they do. What they don't have is their own enforcement mechanism. But, for example, when they needed to desegregate Alabama, they had access to armed forces.

    No, they can't. A good example is Hugo Black's ruling on the Citizenship Clause where he just pulled out of his ass claims about what the Legislative branch intended - claims which contradict the Congressional Record on what the Legislative branch intended.
     
  2. Steerpike

    Steerpike Felis amatus Contributor

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    Only because the Executive agreed to provide them.
     
  3. Justin Rocket 2

    Justin Rocket 2 Contributor Contributor

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    But if the Executive didn't agree to provide them, the Executive could be held in contempt by SCOTUS.
     
  4. Steerpike

    Steerpike Felis amatus Contributor

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    So what? They couldn't do anything. It takes the Executive to enforce contempt orders.
     
  5. Justin Rocket 2

    Justin Rocket 2 Contributor Contributor

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    It could wreck his career even if he's on the side of justice.

    Plus, it would give the Legislature an opportunity to start impeachment proceedings even if they agree with the Executive on this one case.
     
  6. Steerpike

    Steerpike Felis amatus Contributor

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    Hardly. Look at Lincoln. That's not what he got shot over :)
     
  7. Justin Rocket 2

    Justin Rocket 2 Contributor Contributor

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    Lincoln was spared impeachment only because those who would have voted for it were leaving.
     
  8. Steerpike

    Steerpike Felis amatus Contributor

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    That's done by the Legislative, not the Judiciary.

    Weren't you talking in the other thread about the need to protect the minority? Your proposal completely eliminates that protection. If you're going to have the two popularly-elected branches able to decide what is allowable, there's no real need to have a Constitution, because the Constitution could be overriden by majority rule, and that's contrary to the nature of the Constitution, which is meant to place limits that can't be easily swept aside, even by a majority.

    As for checks and balances, we have those already. Executive appoints Judicial with Legislative approval, Legislative can impeach Judicial or Executive, Legislative controls funds, Judicial rules on issue of law, including on acts of Legislative and Executive, and so on.

    Maybe I read you wrong previously and you favor a pure democracy, by majority rule? Because if you want a meaningful Constitution and protection for minorities, leaving the whole things in the hands of representatives elected by majority vote isn't a good way to ensure that.
     
  9. Justin Rocket 2

    Justin Rocket 2 Contributor Contributor

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    Yes, and..?

    There has never been a justice who has been impeached without being acquited. So, really, what your system does is allow a majority legislature supported by a majority executive to pass laws harmful to minorities (the same thing you said my system would do), and then the majority executive (in your system) can appoint justices to help make those discriminatory laws stick around for more than 4 years.
     
  10. Steerpike

    Steerpike Felis amatus Contributor

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    Except that's not the way it plays out. The Supreme Court strikes things down quite often, including today. Look at the case that said it was Unconstitutional to make homosexual sex a crime. Without the Court, not slave to the majority, no way that would have happened when it did. In some States it would still be illegal.

    It's not perfect, but if your concern is tyranny of the minority your way is worse than the present system because it offers no protections.
     
  11. Justin Rocket 2

    Justin Rocket 2 Contributor Contributor

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    This kind of thinking scares the shit out of me. "It can't be bad, look at all the great stuff we got!" A mouse trap always works better if it's got bait.
    There are two critical questions to ask here; how else might we have gotten what we want, and what did we pay for what we got?
    In this case, we lost our freedom and got a Hamiltonian government instead.
     
  12. Steerpike

    Steerpike Felis amatus Contributor

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    Nonsense. As I already said, it isn't perfect. Your proposal is much worse.
     
  13. Justin Rocket 2

    Justin Rocket 2 Contributor Contributor

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    A single point of failure (your system) is never the best alternative when others are available. That's why the Founding Fathers gave us a Balance of Power.
     
  14. jazzabel

    jazzabel Agent Provocateur Contributor

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    Thank you [MENTION=18889]Steerpike[/MENTION], that's a fascinating insight. It's a very good way to approach this issue (and it's been on my mind recently).
    I too am not for removing books off the shelves.
     
  15. Steerpike

    Steerpike Felis amatus Contributor

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    Thanks [MENTION=35110]jazzabel[/MENTION]. It is certainly an interesting topic of discussion!
     
  16. EdFromNY

    EdFromNY Hope to improve with age Supporter Contributor

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    First semester, Con Law. The Constitution is not specific as to how the judiciary is to review the laws. But the rationale was laid out in Marbury v. Madison. Also, if memory serves, in one of the Federalist Papers (sorry, don't remember which one; it's been a few years since I took Con Law).

    As to JJ's question, I would not say the Court overturns laws "all the time", but it does happen. The early decisions, beginning with Marbury, crafted the basis for doing so in a way that assured that overturning enacted laws would be the exception rather than the rule. The only basis for overturning enacted law is that it violates the Constitution. In addition, before a law can be overturned, there must have already been someone who is directly affected by the law ("standing") and they must have already suffered negative consequences from the enactment of the law ("ripeness"). And, in addition to that, the Court doesn't have to take a case (grant certiorari). They will often let lower court rulings stand without review unless two or more courts of appeals have taken contrary positions.
     
  17. Steerpike

    Steerpike Felis amatus Contributor

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    There are also political questions, where the Court will refuse to intervene on questions that are entrusted solely to one of the separate co-equal branches.

    So far no one has answered the question of how you arrive at a workable solution for any given case or controversy if each branch of government is able to make its own final determination on Constitutionality.
     
  18. EdFromNY

    EdFromNY Hope to improve with age Supporter Contributor

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    I've written this before, but it bears repeating. Any system - of government, of business, of organized religion - contrived by humans is, by definition, imperfect. Humans are imperfect (as St. Augustine so brilliantly put it, man is weak-willed, with a darkened intellect and a marked propensity to do evil). The brilliance of the American experiment (as James MacGregor Burns termed it) is that the founders sought a system whereby competing imperfect human interests would offset one another and keep one another in check. Thus they sought a system whereby competing imperfect factions would limit the damage done by any one faction, which is pretty much how it has worked. In my view, the biggest threat to the integrity of the system now is the fact that the theoretical gatekeepers of the system are changing from the people to a select corporate oligarchy that effectively screens out the choices the electorate can make through the extensive financing of candidates the electorate would normally spurn.

    It is also important to remember that the very fact of forming organized societies reflects a need for some kind of cooperative existence, and in any such society complete individual freedom is impossible, because the first function of the society is to assure that no one person's exercise of personal freedom impairs that of another. As my father used to say, with every right comes a responsibility. And in any human endeavor, as soon as you say "we", you sacrifice a little of "I". Happens in a marriage, a club, a country. And, as we are ultimately social animals who accomplish their greatest feats in combination with others, I would also argue that such is a good thing.
     
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  19. EdFromNY

    EdFromNY Hope to improve with age Supporter Contributor

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    Because the question is unanswerable. The beauty of our system is that there is never a final solution. If the Court errs so egregiously in its determination of the unconstitutionality of a law, the Constitution can be changed.
     
  20. Steerpike

    Steerpike Felis amatus Contributor

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    But with the current system, there is a final solution for any given case or controversy. If each branch of government decides for itself what is Constitutional, how would you resolve a given controversy? Any stalemate goes to the branch with the power to enforce its ruling (the Executive). If all you need is a consensus among the popularly-elected branches, then what protections are in place for the minority or unpopular viewpoints?
     
  21. Justin Rocket 2

    Justin Rocket 2 Contributor Contributor

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    You keep hammering on the idea that each branch decides for itself. But, that's a straw man. What was actually argued is that the final determiner is two branches over one.
     
  22. Steerpike

    Steerpike Felis amatus Contributor

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    Actually, I've addressed this numerous times, including in the very post you quoted when you made this statement. You've just ignored it. I think you're arguing simply for the sake of arguing, and you're so eager to make your next contradictory statement that you're not even reading what is being posted.
     
  23. EdFromNY

    EdFromNY Hope to improve with age Supporter Contributor

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    I'm not arguing with you. All of the constitutional protections are for the purpose of protecting the minority from the ultimate tyranny of the majority.
     
  24. Steerpike

    Steerpike Felis amatus Contributor

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    Yeah, I knew you weren't, and I agree. I think having a relatively weak branch (i.e. one with no police powers or enforcement mechanism of its own) that is insulated from the popular vote making these determinations is better than the alternative.
     
  25. Justin Rocket 2

    Justin Rocket 2 Contributor Contributor

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    You mentioned a "stalemate" in your last post, but two against one is not a stalemate. A stalemate is when two branches can't reach an agreement.
     

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